64 Iowa 125 | Iowa | 1884
The defendants, for answer, denied that the plaintiff furnished labor and materials to their testate as alleged, and averred, by way of counter-claim, that there was due from the plaintiff to the estate the sum of $143.25 for personal property purchased by the plaintiff at ah executor’s sale, and
The plaintiff, for reply, admitted the use and occupancy of the creamery during tire time alleged, but denied that he was indebted to the estate therefor, because, he says, he did not rent the same of the defendants, but occupied under an assignment of 'a lease, which had been executed by the defendant’s testate to one Henry Arnold, one John Smith and one Henry Grow, and which lease had been executed to Arnold, Smith and Grow for a consideration already received. The court instructed the jury upon the theory that, if they found that there was anything due the plaintiff upon his account, the sum of $143.25, which the parties were agreed had become due the estate for personal property purchased by the plaintiff at an executor’s sale, should be applied, and the balance be recovered by the plaintiff or defendants, according to the side upon which they found the balance to be. The defendants claim to be aggrieved by such instruction. They claim that the purchase money due from the plaintiff for the personal property was not applicable upon the plaintiff’s claim, or at least not necessarily so, and that the jury should not have been so instructed.
We are not certain that by the words, “plaintiff offers in evidence items of lumber amounting to sixty-eight dollars and
We find in the abstract the following words: “Plaintiff proceeds with all of said lumber account.” This was objected to, and the objection was overruled.. This is assigned as error. What is meant by the plaintiff’s proceeding with the lumber account we do not know. We suppose that the plaintiff proceeded with his examination of Stable in regard to it. But we cannot hold that the court erred in admitting something, when we cannot discover what it was that the court admitted.
We ought, perhaps, to say that we find in the abstract constant references to the transcript. .It seems to us probable that the defendants’ counsel assumed that we would examine the transcript, and that it was not necessary that the abstract should be intelligible, independent of the transcript. But, in the absence of a conflict of abstracts, we treat the abstract as the record in the case, and, if it is not sufficiently intelligible to show the rulings made, we act upon the presumption that there is no error. ■
It is not to be denied that the rules of law as given by the court become the law for the jury, and, if they disregard the instructions in the rendition of their verdict, it must be set aside. But in the case at bar we cannot say that the instruction in question was disregarded. The court manifestly used the word “ defendants,” where it intended to use the word plaintiff. Such a mistake any lawyer or judge may easily make. Sometimes such mistake might introduce confusion and uncertainty. But in the case at bar it did not have that effect. No mind, professional or non-professional, could have the slightest doubt as to'what the «ourt meant. We see no error’, and the judgment must be
Affirmed.